Citation Nr: 0005792 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 96-47 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for keratoconus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from February 1969 to November 1970. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veteran Affairs (VA), in which the RO decided that new and material evidence had not been submitted to reopen a claim for service connection for keratoconus. FINDINGS OF FACT 1. In a May 1995 decision, the Board denied service connection for keratoconus. 2. The evidence received subsequent to May 1995 regarding a claim for service connection for keratoconus, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The record contains evidence of a current diagnosis of keratoconus. 4. The record contains statements from Edward K. Isbey, III, M.D. and Robert P. Laborde, M.D. that the veteran's current keratoconus disability is probably related to his military service. CONCLUSIONS OF LAW 1. The May 1995 Board decision denying service connection for keratoconus is final. 38 U.S.C.A. § 7104(b) (West 1991). 2. The evidence received subsequent to the Board's May 1995 decision is new and material, and serves to reopen the veteran's claim for service connection for keratoconus. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The claim for service connection for keratoconus is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). In the absence of chronicity at onset, a grant of service connection requires evidence of continuity of symptomatology demonstrating that a current disability was incurred in service. 38 C.F.R. § 3.303(b) (1999). Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d) (1999). In a May 1995 decision, the Board denied service connection for keratoconus. The May 1995 decision by the Board is final. 38 C.F.R. § 20.1100 (1999). The question presently before the Board is limited to whether the veteran has submitted new and material evidence to reopen his previously denied claim. To reopen a finally denied claim, an appellant must submit new and material evidence. 38 U.S.C.A. § 5108, 7104 (West 1991); 38 C.F.R. § 3.104 (1999). As defined by regulation, new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). Current case law provides for a three-step analysis when a claimant seeks to reopen a final decision based on new and material evidence. First, it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, it must be determined immediately upon reopening whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, the merits of the claim must be evaluated after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) and Winters v. West, 12 Vet. App. 203 (1999) (en banc). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, "the credibility of the [new] evidence" is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The new and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, as previously discussed, the Board denied service connection for keratoconus in a May 1995 rating decision. In making its decision, the Board concluded that there was no evidence of a keratoconus condition in service, and no competent evidence of a nexus between his current keratoconus condition and his active military service. The evidence received since the May 1995 Board decision regarding a service connection claim for keratoconus includes statements from the veteran dated in May 1995, September 1995, August 1996 (Notice of Disagreement), September 1996, October 1996 (Appeal to the Board - VA Form 9); VA outpatient treatment records from March 1988, June 1994, April 1995 and September 1998; August 1995 and November 1999 medical statements from Robert P. Laborde, M.D.; a November 1999 medical statement from Edward K. Isbey, III, M.D.; and the transcripts from the veteran's hearings, in June 1996 before the RO and in October 1999 before the Board. The Board also notes that the veteran's claims file includes additional medical evidence submitted since May 1995 that was not listed above. The Board finds that this evidence pertains to the veteran's other disability claims and is not related to an eye condition. The Board finds that the November 1999 statements from Doctors Isbey and Laborde raise the possibility that the veteran's current keratoconus disability is related to his active military service. Dr. Isbey stated in his letter that he felt that the veteran apparently developed keratoconus during his time in the service. However, the Board notes that in this same letter Dr. Isbey stated that keratoconus can develop at any time and that he could not make a statement that the veteran's time in service hastened or caused the development of keratoconus. Dr. Laborde stated in his November 1999 letter that it is highly probable that the veteran incurred an eye injury or infection, causing corneal problems that led to keratoconus. Previously, the record did not contain such medical opinions. The Board finds that this evidence added to the record since the May 1995 Board decision, either by itself or in the context of all the evidence, both old and new, provides competent medical evidence reflecting a nexus between a current keratoconus disability and an inservice injury or disease. Therefore, the Board concludes the additional evidence constitutes new and material evidence sufficient to reopen the claim for service connection for keratoconus. The Board also finds that the claim is well grounded. The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). In determining whether the claim is well grounded, evidentiary assertions must be accepted as true for the purposes of determining whether a claim is well grounded, except where such assertions are inherently incredible or beyond the competence of the person making the assertion. See King v. Brown, 5 Vet. App. 19 (1993). Concerning the first element -- evidence of current disability as provided by a medical diagnosis -- the veteran has presented evidence from Doctors Isbey and Laborde from November 1999 that refer to the veteran's current keratoconus condition. Furthermore, VA outpatient treatment records from September 1998 reveal a diagnostic impression of keratoconus of the left eye. The veteran's service medical records, which describe an inservice vision problem, as well as the veteran's testimony during his two VA hearings describing his inservice vision problems causing his service discharge, satisfy the second element of a well grounded claim, namely the incurrence of a disease or injury during active military service. The Board also finds that the same evidence from Doctors Isbey and Laborde previously described, satisfies the third element of a well grounded claim, namely medical evidence of a nexus between service and the current schizophrenia disability. As previously described, the separate statements from these two doctors include opinions that the veteran's current keratoconus problem is related to service. Thus, all three elements of a well grounded claim are satisfied for the veteran's keratoconus claim. See Caluza, supra. ORDER New and material evidence has been submitted to reopen a claim for service connection for keratoconus. REMAND The Board finds that additional evidence is necessary to fairly adjudicate the appellant's claim. In particular, the Board notes that the November 1999 statement from Dr. Isbey appears to contradict itself by stating, on the one hand, that the veteran's keratoconus developed in service, and then stating that he could not make a statement that keratoconus is related to service. Furthermore, the November 1999 statement from Dr. Laborde that keratitis with corneal scarring led to keratoconus lacks the factual and medical bases for such a conclusion. The Board also finds that Dr. Laborde failed to provide the medical and factual bases for the conclusion that the veteran experienced some form of injury or infection during service that led to permanent scarring and irregular astigmatism of the left eye. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to this claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following actions: 1. The RO should request that the appellant furnish the names and addresses of all health care providers who have accorded him treatment for his eye condition from May 1995 to the present, as well as authorization to request records from any private medical treatment providers during this period. 2. Upon receipt of such information, and, if necessary, duly executed authorization for the release of private medical information, the RO should request that all health care providers identified by the appellant furnish legible copies of all medical records compiled in conjunction with treatment accorded him for an eye condition since May 1995, and not previously received on record. The Board is especially interested in the records from Dr. Robert P. Laborde and Dr. Edward K. Isbey, III. 3. The RO should request from Dr. Isbey that he provide clarification of his statement, dated in November 1999, which indicates that the veteran's current eye condition is related to service while also stating that he could not determine if the condition was related to service. Dr. Isbey should explain the factual and medical bases relied on to form his opinion. He should also provide any objective evidence upon which he based his opinion. Similarly, the RO should request from Dr. Laborde a clarification of his November 1999 statement, as outlined in the introductory paragraph of this remand order. 4. The RO should afford the veteran the opportunity for a VA examination of his eye disability. The examination report should include an opinion as whether the veteran's current eye problems are related to an inservice eye condition, and the factual and medical bases for such an opinion. The Board is also interested in an opinion, based on the evidence and medical knowledge, as to whether the veteran's eye condition in service is the natural progression of a preexisting medical condition. The claims folder must be made available to the examiner. 5. The RO should then readjudicate the claim of service connection for keratoconus with consideration given to all of the evidence of record, and any additional medical evidence obtained by the RO pursuant to this remand. As this claim has been reopened and found to be well grounded pursuant to the Board's decision herein, the RO must conduct a full review of the merits of the claim and fulfill its duty to assist the claimant. 6. If the claim is denied, the appellant and his representative should be provided with a supplemental statement of the case and given an opportunity to reply thereto. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action until otherwise notified. The appellant is hereby informed that he has the right to furnish additional evidence and/or argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is further advised that he should assist the RO in the development of his claim. Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). The veteran is hereby notified that it is the veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (1998); see Wood v. Derwinski, 1 Vet.App. 191, 193 (1991). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MARY GALLAGHER Member, Board of Veterans' Appeals